Hinds v. Superior Court

SCHOTTKY, J. Petitioner filed in this court a petition for a writ of mandate commanding the Superior Court of Tehama County to set aside its order dismissing the appeal of petitioner in a case in which petitioner was seeking to appeal from a judgment of the justice court. We issued an alternative writ.

The factual situation, which is not in substantial dispute, is as follows:

Petitioner brought an action against Arthur L. Sharp in the Justice Court of the Red Bluff Judicial District, County of Tehama. Judgment was entered against Mr. Hinds on March 21, 1956. Notice of entry of judgment was filed on March 23, 1956. On April 21, 1956, petitioner’s counsel who has his offices in Fall River Mills, in Shasta County, about 100 miles from Red Bluff, sent a letter to the judge of the justice court in which counsel requested the judge to file a notice of appeal which was enclosed. The letter also stated: “Also enclosed please find my cheek for not over $15.00 to cover the costs on appeal.” The check had not been completed. The amount had not been filled in. Someone filled in the check for [760]$1.00. On June 13, 1956, petitioner’s counsel learned that the appeal had not been transferred to the superior court because the total costs on appeal had not been paid. These costs were then paid and the record transmitted. On August 27, 1956, a motion was made to dismiss the appeal on the ground that section 981 of the Code of Civil Procedure was hot complied with. The section reads in part as follows:

“No appeal taken from a judgment rendered in a justice court in civil matters shall be effectual for any purpose whatever unless the appellant shall, at the time of filing-the notice of appeal, pay in addition to the fee payable to the judge of the justice court on appeal, the fees provided by law to be paid to the county clerk for filing the appeal and for' placing the action on the calendar in the superior court. ... No notice of appeal shall be filed unless the fees herein provided for are paid in accordance with the provisions of this section.”

The superior court made an order dismissing the appeal,' stating in its memorandum opinion: “Inasmuch as the statutory provisions for the appeal were not complied with, the appeal must be dismissed. The appellant or his counsel are responsible for the mistakes made by those to whom they entrust a duty, and a failure to comply with' the statutory provisions is fatal.”